By Smt. C. S. Sulekha Beevi, President,

1. The complainant availed a Health Plus Medical Expenses Policy/Medi Guard policy from opposite party. It was a comprehensive family policy covering his father and mother also. The complainant and his family members were examined by expert medical practitioner prior to the issuance of policy. The policy was continuously renewed every year for the past one decade under the same branch of opposite party. During the currency of the policy, on 23-6-2008 the mother of the complainant, Claramma Joseph was admitted and treated as inpatient at Kottakkal Arya Vaidya Sala Hospital and Research Centre, Kottakkal. She was discharged on 02-7-2008. Nearly Rs.48,000/- was spend towards treatment and medicines. Complainant had promptly informed opposite party about the admission and opposite party had issued claim form. All the necessary documents were furnished along with the duly filled claim form. But on 12-8-2008 opposite party issued a letter stating that the file stands closed for the reason that Ayurvedic treatment taken from Private hospital is excluded from the scope of policy. Complainant is aggrieved that opposite party unjustly denied his claim. He alleges deficiency in service. Hence this complaint claiming Rs.48,000/- along with interest as benefits under the policy together with costs of Rs.3,500/-.

2. Opposite party filed version admitting the issuance of policy to the complainant for the period 01-8-2007 to 31-7-2008. It is submitted that the liability of the insurance company is to indemnify the complainant against medical expenses according to the terms, conditions, limitations and exceptions in the policy. It is further submitted that Ayurvedic treatment in private hospital is specifically excluded from the scope of the policy. That the repudiation was in accordance with this specific exclusion and therefore there is no deficiency in service. That opposite party is not liable to pay the sum of Rs.48,000/- or any other relief claimed in the complaint.

3. Evidence consists of the proof affidavit filed by complainant and Exts.A1 to A4 marked for complainant. The Divisional Manager of the insurance Company who is not a party in the case has filed the version and counter affidavit on behalf of opposite party. No document marked for opposite party. Either side has not adduced oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so reliefs and costs.

5. Point (i):-

Complainant is aggrieved by the dishonour of his claim for re-imbursement of the medical expenses for the treatment undergone by his mother who is covered under the medi claim policy. It is the case of complainant that in the policy copy given to him there was no condition excluding ayurvedic treatment under taken in private hospital. He further submits that the Kottakkal Arya Vaidyasala from where his mother was treated is a renowned ayurvedic centre for ayurvedic medical treatment and that the hospital has international reputation.

6. The issuance of the policy and it’s validity during the relevant period is not disputed by opposite party. The claim is resisted by opposite party, raising the contention that as per the terms of the policy, ayurvedic treatment undergone in a private hospital is excluded.

7. Complainant placed reliance upon Ext.A1 which is the insurance policy issued by opposite party. Ext.A1 contains the terms, conditions, exclusions and limitations of the MEDI-GUARD insurance policy. Undisputedly, Ext.A1 does not contain any term or condition which excludes ayurvedic treatment undergone by the insured in a private ayurvedic hospital.

8. To substantiate the ground for repudiation opposite party relied upon Ext.A2 which is produced on the side of the complainant. Ext.A2 is the policy schedule issued by opposite party for the relevant period pertaining to this claim ie., from 01-8-2007 to 31-7-2008. It was submitted by opposite party that in Ext.A2 it is stated that ayurvedic treatment taken in a private hospital is excluded from the coverage of the policy. On perusal of Ext.A2 we see that Ext.A2 was issued on 31-7-2007 along with Ext.A3 which is a receipt issued for payment of renewal premium. On the bottom portion of Ext.A2 a seal in red ink is impressed/affixed which reads as under:

"Ayurvedic treatment in private hospitals are excluded from the scope of the policy".

9. Based upon this seal impressed statement in Ext.A2 policy schedule dated, 31-7-2007 opposite party has repudiated the claim of the complainant. Ext.A2 policy schedule was issued only on 31-7-2007 ie., after the premium for renewal of the policy was accepted by opposite party. Admittedly the policy has been renewed several times. Opposite party does not have a case that such a condition excluding ayurvedic treatment in private hospital was part of the terms and conditions in Ext.A1 policy which was issued at the inception of the policy. In Ext.A2 the date of proposal form and declaration is noted as 12-7-2005. The policy has been renewed thereafter every year. After accepting the premium for renewal on 31-7-2007 and on issuing the policy schedule for renewed policy, opposite party has included a new exclusion term into the policy.

10. The question that then poses for consideration is whether opposite party can unilaterally alter the terms and conditions of the policy without receiving consent of the insured.

11. The essence of a contract is that there should be an aggregation mentium, the meeting of the mind of contracting parties. The parties should be of one mind on all material terms of the contract at the time the contract is said to have been finalised/concluded. Thus the consensus ad idem should be related to the date of the contract. The parties herein, the complainant and opposite party have intended their contract as concluded and to take effect on the original date of inception ie., 12-7-2005 as is seen from Ext.A2. The terms of the contract of insurance was fully settled between the complainant and opposite party on 12-7-2005, and opposite party had issued Ext.A1 policy conditions to the complainant. In our view, opposite party cannot vary the terms of agreement unilaterally by inserting or altering the terms settled at the time of inception of the policy. For any such insertion or alteration to be binding upon the insured, it is obligatory for the insurer to obtain consent of the insured by execution of a fresh declaration. When no such delcaration accepting the new condition has been signed by the insured it is not binding upon him. The new condition inserted in the policy schedule without approval of the complainant and imposed upon him after accepting premium for renewal cannot be enforced. It is the proposal form and declaration that would be basis of the contract. Renewal by not executing a fresh proposal/declaration would mean that parties have intended to renew the period of the policy only and not it’s terms and conditions. For the aforesaid reasons we are not inclined to accept the contention of opposite party, and read the new exclusion clause as part of the policy. The repudiation of the claim by opposite party is unjustified and unsustainable. The act of opposite party in unilaterally varying the terms of the contract and denying the claim amounts to deficiency in service. We find opposite party deficient.

12. Point (ii):-

The complainant claims for Rs.48,000/- towards the expenses for treatment and medicine. It is stated that he has produced the documents before opposite party. His affirmation in this regard is not controverted by opposite party by specifically denying the basis of the amount claimed. Hence we hold that complainant is entitled to payment of this amount. He is also entitled to be compensated for the illegal retainment of legitimate amount. We consider that interest @ 6% per annum upon the amount along with cost of Rs.2,000/- would meet the ends of justice.

13. In the result, we allow the complaint and order that opposite party shall pay to the complainant, a s um of Rs.48,000/-(Rupees Forty eight thousand only) along with interest @ 6% per annum from date of complaint till payment together with costs of Rs.2,000/-(Rupees Two thousand only) within one month from the date of receipt of copy of this order.

 

Dated this 8th day of February, 2010.

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C.S. SULEKHA BEEVI, PRESIDENT

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MOHAMMED MUSTAFA KOOTHRADAN,

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MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A4

Ext.A1 : Medi-Guard Insurance Policy with terms and conditions given by opposite party

to complainant.

Ext.A2 : Policy Schedule for the period from 01-8-2007 to 31-7-2008 given by opposite party

to complainant.

Ext.A3 : Receipt for Rs.7,426/- dated, 31-7-2007 from opposite party to complainant.

Ext.A4 : Letter dated, 12-8-2008 from opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

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C.S. SULEKHA BEEVI, PRESIDENT

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MOHAMMED MUSTAFA KOOTHRADAN,

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MEMBER E. AYISHAKUTTY, MEMBER